Category Archives:Criminal Law

Police Encounters: Advice from an Officer


The topic of police encounters has overtaken the media recently.  Readers, I  asked a retired police officer the following question:  “What do I do if I am stopped by the police?”  Here’s his practical advice and perspective:
First of all remain calm. If you have any concerns about your safety or the legality of the stop, obey all traffic laws and drive to a well-lit public place then stop for the police. When they ask why you didn’t stop immediately then tell them. You can also call the local police dispatch and tell them the situation to insure that the person pulling you over is legitimate.
You will be approached by the officer on your driver’s side or the passenger side of your vehicle and asked for your driver’s license, vehicle registration, and proof of vehicle insurance so think about where those items are. Keep your hands where the officer can see them and don’t make any sudden moves. Be aware that the officer will be justifiably cautious and doesn’t know you or what you have in your vehicle. He or she will tell you the reason for the stop at some point during the encounter but maybe not during the initial contact. If you are courteous and respectful to the officer then he or she will likely be to you as well.
Things to keep in mind about your encounter with law enforcement:
1. There are many traffic laws on the books that when violated give an officer legal probable cause to stop your vehicle and check your license, registration, and insurance. They range from very minor infractions such as missing license plates, faulty vehicle lights, or a cracked windshield, to moving violations and more serious offenses. Don’t escalate things by being uncooperative and disruptive. There have been many cases where a minor traffic stop, which would have likely resulted in a warning or meager fine, turned into an avoidable felony or even fatal encounter.
2. Being cooperative doesn’t mean admitting guilt.
3. Know that you do not have to consent to a search of your vehicle but in some situations an officer can legally make the search without your consent.
4. If you disagree with the legality of the stop or the officer’s actions the place to challenge the issue is not on the street with an armed police officer but in court in front of a judge or through other legal means. Additional options are that you can complain to the officer’s chain of command or the internal affairs unit of the police department. You can contact your local government official such as the city council or county commissioners. You can contact the news media about your issue.
5. Make sure you write down what happened as soon as possible and if there are witnesses then make sure you have their names and statements as well. Be as detailed as possible about what the officer did or didn’t do and their demeanor. Note where the stop took place as there may be video cameras in the area which could support your claim. Take photographs of any injuries or damage and consider seeking medical attention if needed. You can request a copy of the police report after the incident.
6. Finally you can contact an attorney for more advice on all the above.
Keep in mind that being a police officer is a dangerous occupation and that over 100 officers are killed in the line of duty each year. The officer you are dealing with knows this and receives ongoing officer training in officer safety.

Aurora Theater Massacre Jury Selection

dark knight risesJuly 20, 2012 just 18 minutes into the new movie “The Dark Knight Rises” gunfire was opened on the audience. The gunman was dressed in head-to-toe protective gear and many movie goers thought it was part of the movie until the gunman released two tear gas canisters up the aisles of the movie theater. After the canisters exploded, the gunman started firing at the audience. Police recovered an AR-15 rifle, a 12-gauge shotgun and two .40-caliber handguns. 12 people were killed and dozens more injured by the gunman who was taken into police custody minutes later known as James Holmes who was 24 years old at the time.

It is very rare to have a mass shooter in court as most either commit suicide or are killed by the police but James Holmes’s was taken into custody, charged and his trial has started. On January 20, 2015 jury selection began from 9,000 prospective jurors. It is the largest jury pool in U.S history. Of the prospective 9,000 jurors 1 of 50 registered voters in Arapahoe County had a chance of being selected. The prospective jurors will arrive in groups of 250 twice a day and will be asked to complete an 18 page questionnaire. Potential jurors will be called back for individual questioning which is a process that can take up to 4 months to complete. 100 potential jurors will be left after this process and will be questioned in a group session. The jury will consist of the final 12 jurors and 12 alternates which may not be complete until May or June with the trial lasting until October.

James Holmes has been charged with multiple counts of murder and attempted murder and has pleaded not guilty by reason of insanity. If found guilty, jurors will have to decide whether to recommend the death penalty. If found not guilty Holmes would be committed to a mental hospital indefinitely. The case has gone on for so long as the prosecution and the defense are trying to determine if Holmes was insane at the time of the shooting as defined under the Colorado law. Insanity as defined by Colorado law (C.R.S. § 16.8.-101.5) is The person must be “diseased or defective in mind.” This is typically translated as having a mental illness (almost always a psychotic thought disorder like Schizophrenia or Schizoaffective Disorder). To be considered mentally diseased or defective, a condition must “grossly and demonstrably impair a person’s perception or understanding of reality.”

Check back for updates as the trial gets underway. Jury selection is expected to take several months.

by Brittney Jones, Paralegal

When Can I Drive Again? Persistent Drunk Driving and Interlock


The most important detail to know about any DUI or DWAI charge is that we are talking about two different paths: the criminal case prosecuted by the district attorney and the administrative case reviewed by the Colorado Department of Revenue. Both sides have the ability to revoke or suspend your driving privilege in different ways. A case dismissal on the part of the district attorney does not mean a dismissal by an administrative law judge, and vice versa. Don’t even bother bringing up what happened at your Department of Revenue DMV hearing to the district attorney when you’re in plea negotiations. Each agency does what they want with your case.

Are you a Persistent Drunk Driver (PDD)? This is a label the Department of Revenue will give you if you picked up a DUI charged after January 1, 2014 and your blood alcohol level was a .15 or higher. If you picked up a DUI charge after 1/1/2014 and you refused to take a chemical test (blood test or Intoxilyzer breath test), you will also be slapped with a PDD label. If you are designated a Persistent Drunk Driver after 1/1/2014, you will be required to have an interlock device installed on your car for a minimum of two years if you want to drive at all. This is after you’ve served the period of suspension which is typically 30-60 days and you have purchased SR-22 insurance. The interlock device (aka “blow and go”) attaches to your car’s ignition and requires you to blow into a tube for several seconds to test your breath for alcohol. Once the device determines you are clear to drive it will beep at you and you’re free to start driving. Every 10-15 minutes of driving the device will beep for a follow up test. You can blow into the device while driving, but use caution because it can be a distraction. If you fail the test or it results in error from incorrectly blowing or not using enough breath, your call will stop running.

The interlock device requires regular calibration at a designated service center every 30 to 60 days which costs between $70 and $90. A printout is mailed to the Department of Revenue indicating all testing results. You can usually remove the device after the 2 year period with clean driving and no positive test results. You’ll get notification from the Department of Revenue saying you’re free to drive normally again. If the device detects alcohol on the driver in three of any twelve consecutive months, the interlock restricted driver must keep the interlock device and be under the interlock restriction for an additional year.

6 Reasons Why You Should NOT Go to Court Alone

judge cartoon There are hundreds of websites written for people who want to represent themselves. Everyone in the United States has access to Google and Bing. Most people with at least some computer savvy can locate major case decisions for DUIs, divorce and criminal offenses with a few swipes on their smartphones. Here’s the cold fact: while you may effectively represent yourself in some limited cases, if you have been charged with anything other than a petty offense or traffic ticket, or if you’re embarking on a divorce or family law case and don’t want to give everything away to the opposing side, you should strongly consider speaking to an attorney first. And after speaking to that attorney (and maybe a few others), you should probably hire one of them. Here are 6 reasons why you should not (I repeat: NO NO NO) represent yourself in court, regardless of everything else you may have read online.

1. So you want to go pro se, but you don’t know what the words “pro se” mean?

I can’t count how many times I’ve heard lousy attorneys or unrepresented defendants tell the court they’d like to “squash” a warrant. Do you know the right word to use in that last sentence? It’s “quash” and if you didn’t know this, you probably should not be representing yourself in court. Courtrooms have a certain vocab, a Latin-heavy lingo, that you may not be used to hearing in everyday life. Every document served in court has its own legal title: petition, citation, motion, answer, response. Every hearing has a different name: first appearance, arraignment, setting, pretrial conference, disposition etc. Stop your head from spinning on all of the legal jargon and hire an attorney so you don’t have to think so hard. P.S. Pro se translates to “for oneself,” as in going to court for yourself. Remember this.

2. The judge will not like you if you represent yourself.

Yes, you have the right to represent yourself in court. However, nobody likes it. Should you decide to represent yourself, it’s likely you’ll hear the judge advise you once or more about that decision. Sometimes judges will even slickly try to talk you out of going pro se (I know you now know what pro se means). Representing yourself means the clerks and judges will have to take more time to explain things to you. This will effect court efficiency and most judges love efficiency. Also, some defendants/respondents/petitioners come as cocky or arrogant as they huff and puff and address the Court. Have you heard Judge Judy react to arrogant people on her show? I’ve seen judges come down similarly on parties. I’ve heard a judge actually tell the parties, “This is not Judge Judy!” when courtroom decorum wasn’t followed.

3. You’ll get out of court faster.

In most jurisdictions, attorneys are heard before everyone else. That means if you have an attorney, he or she can jump up and have your case called toward the beginning of the docket. That means you get to skip being bored and restless listening to all of the other cases drone on before the judge gets to your name, Zachary Zagat, printed last on her alphabetically listed docket. 4. Every courthouse and courtroom is different. You can’t research that online. I’ve practiced in Colorado for almost a decade now and I’ve appeared in eight different counties/jurisdictions so far. Every jurisdiction runs a little differently from the next. While a pro se or sovereign focused website will give you a general overview of what you might expect of the court process, that website might not be specific to your jurisdiction and I’m certain there will be no details about how the courtroom operates in your assigned division in your particular jurisdiction. I suppose you could sit in on dockets for hours beforehand and get a feel for your judge–and I’ve seen pro se defendants do that sort of thing–but who has that kind of time? You’re better off spending that time shopping around for an attorney who you feel is on your side and competent to take your case. And speaking of online research, printing out Wikipedia pages and articles to present to the Court at a hearing will have little to no impact on the outcome of your case. There’s this big book of things called The Rules of Evidence, which dictates what kind of evidence gets action in a case. You’ll be held to a standard pretty close to a regular attorney and that means you’ll have to play by the same Rules.

5. An experienced attorney knows the court’s quirks and preferences.

Remember the classic comedy, My Cousin Vinny? Vinny may have (spoiler alert) won the trial, but he sure looked ridiculous along the way. And he was an actual law school graduate. I suggest you find an attorney who has experience practicing in the courthouse where your case is scheduled. When I say “practicing,” I mean standing in front of the bar in the courtroom on a regular basis, reciting his bar registration number from memory for the record without hesitation, and addressing the judge from the lectern. A cousin of a friend of a friend who does real estate law probably won’t be of help to you on your felony burglary case that’s postured for a jury trial, even if his retainer is bargain basement. Why not choose the attorney who can name a couple of the judges in the courthouse and knows that, for instance, Judge Matthews is a woman?

6. Have you met Miranda?

Don’t trust what you see on TV. I’ve had dozens of potential clients tell me that their cases should be thrown out since the police officer never read them their rights. Because, they say, on Law & Order, or CSI or Brooklyn 99, the cops always read the Miranda rights, right? Not so fast; there is no automatic rule saying a cop has to read you anything upon first contact. You’re really only supposed to get those famous Miranda advisements read to you if you’re facing custodial interrogation, a term which can be complicated and is outside the scope of this blog post. And even if you happen to be in a situation of custodial interrogation and you weren’t read your Miranda rights, it doesn’t necessarily mean that the entire case gets tossed. There are nuances that need to be considered. If you’re going to remember anything about Miranda upon reading this post, remember the second of the rights: You have the right to an attorney. If you can’t afford an attorney, one may be appointed for you. Take advantage of this right and don’t go it alone on your legal matter.

Kids Committing Murder


Children under 18 years old are committing more and more major criminal offenses, and video games like Grand Theft Auto cannot be to blame.  On October 11, 2013, an 11 year old boy in Washington state was found guilty of conspiring to commit murder against a 10 year old girl.  His reason for planning to stab the 10 year old girl to death?  Because he found her to be “really annoying.” The judge in the case called it the most serious case he had ever come across in his career.  Defense counsel attempted to present evidence that the boy could not separate fact and reality from fantasy, a theory which was ultimately rejected by the judge.  However, they were able to successfully present some evidence that the boy suffered from bipolar disorder.  Still, the fifth grader was ultimately found guilty of the crime and acquitted of criminal tampering.  He was tried as a juvenile because of his very young age and faces sentencing in early November 2013.

Even closer to home, juvenile Macyo January is accused of committing a string of burglaries throughout Colorado Springs and El Paso County in Colorado, and during one bust he unexpectedly came across homeowners, a young newlywed couple, and allegedly murdered them.  Evidence presented in pretrial proceedings revealed that the wife, Whitney Butler was pregnant when she was shot in her head and killed as she kneeled over her dying husband, David Dunlap in a scene and image that will be forever etched into the minds of jurors, should the case go to a jury trial.  While January could have been tried in juvenile court because of his age at the time of crime, a judge determined that he would be tried for murder as an adult.  Courts may consider several factors in determining whether a Colorado juvenile will be tried in juvenile court or adult felony court, including the severity of the crime, how close a child is to the age of 18 at the time of the offense, and the child’s mental capacity or emotional maturity.  In the case of January, he was four month’s short of turning 18 when he committed the offense and documents from the Division of Youth Corrections in Colorado reveal that Macyo January self-reported that he would have no problem committing murder if he “knew he could get away with it.”

Cases like this are certainly alarming, and for the most part, prosecutors do not feel overwhelming senses of victory when a very serious case involving a child ends.  In cases of conviction victims and their families may feel that some justice was served, but overall there are larger societal and cultural concerns at play.  Whether its a serious case or a minor juvenile offense, consider consulting an attorney with experience in Juvenile Court before you commit to any plea agreement.  Attorney Marika Frady in Colorado Springs, Colorado, has years of experience handling juvenile court cases, including misdemeanors, felonies and sexual offenses.  She also spent two years as the deputy district attorney in charge of determining which charges to file in the approximately 1500 cases submitted by law enforcement agencies annually.  While the juvenile court system in Colorado is designed to mimic the penalties and procedures of the adult justice system, there are key differences that you need to know and scheduling a consultation with a knowledgeable lawyer is the fastest way to get those answers.